A U.S. DISTRICT COURT judge in Cincinnati ordered Business Week not to publish an article about a dispute involving two private firms. That is called prior restraint, and the judge knew when he did it that the Constitution forbids such an action. A panel of U.S. appellate judges, who also knew better, refused to over-rule the district court, on a procedural technicality. Yesterday, Supreme Court Justice John Paul Stevens turned down the magazine's emergency request to lift the order.
He certainly knows better. He was a federal appellate court judge in 1971 when the Supreme Court ruled that courts could not restrain the press from printing even most military and diplomatic secrets. And Justice Stevens was on the Supreme Court by 1976 when it ruled unanimously that prior restraint was not justified in a case in which a man's constitutional right to a fair criminal trial might have been compromised by press reports.
The Business Week case doesn't come close to the sensitivity of those issues raised in 1971 and 1976. The magazine wants to publish an article about a dispute between Proctor & Gamble and Bankers Trust Co. P&G is suing Bankers Trust for fraud. The news story the judge stopped the presses on is based in part on a 300-page document filed by P&G with the court. The judge had sealed that document, but a Business Week reporter obtained a copy. When Bankers Trust learned of that, it sought and got the prior restraint order.
Commercial interests are important, but the courts have never given them the same level of protection as national security and fair trial issues. And to repeat, in 1971 and 1976 the Supreme Court said even those concerns were never -- or hardly ever -- justifications for prior restraint, which is censorship, pure and simple. The First Amendment's guarantee of freedom of the press is meant to prevent that.
Eventually the full Supreme Court will have to rule again. We are confident the court will come down flatly against such prior restraint, Justice Stevens included. He signaled that he would in 1976. But a long delay in publication can be just as damaging -- just as much censorship -- as a flat prohibition to ever publish. As Justice William Brennan put it in 1976, "there is . . . a clear and substantial damage to freedom of the press whenever even a temporary restraint is imposed on reporting. . . "